A Balanced Plan for Medical Cannabis Regulation in San Jose

San Jose's City Council couldn't come up with a plan to regulate medical marijuana after two marathon meetings in back-to-back weeks.

Last Tuesday afternoon, the San Jose City Council did something it had never done before—it questioned and challenged the city manager’s staff on their approach to medical cannabis regulation.

Staff purports to be objective and “just following the law,” but they have a distinct bias against medical cannabis. It is strongly reminiscent of the narrow, restrictive, pro-drug-war view held by some in Southern California law enforcement. San Jose policy should not be based on the ideology of the likes of Los Angeles County District Attorney and failed candidate for Attorney General, Steve Cooley.

For four years, staff has said that medical cannabis collectives can only grow cannabis—they cannot distribute it in the storefront model prevalent and permitted throughout California. They’ve said that collectives can’t sell cannabis, should not be allowed to use cash transactions and can’t pay salaries and wages.

On Tuesday, councilmembers from all sides of the political spectrum challenged staff on all of these assertions and more. The council has finally realized that staff keeps bringing back the same old thing: a ban in the guise of regulations. Mayor Chuck Reed, based on his own research, actually had to correct staff’s misrepresentation of the availability of banking services to the cannabis industry.

Ironically, staff’s biased approach has only perpetuated confusion. A de facto ban would take us back to the underground market of no regulation, no transparency and no $6 million dollars a year in city tax revenue.

The mayor and most of the council want to find a balanced approach that protects our children and neighborhoods and assures safe convenient access to medical cannabis for patients. If they want to attain that goal, they need to make the following changes in the proposed ordinance:

1) Take a reasonable first step to control and regulate storefronts. The ordinance should be reality-based, integrated and consistent with what is working now. As the Mayor said: You never hear about the good collectives, only the few trouble-makers. Registration by itself will give operators something to lose.

2) Zoning and Proximities. Rather than over-focus on zoning and proximities, the city should worry about behavior, neighbor relations and best management practices. If a collective can’t maintain a professional presentation, then it should be treated as a nuisance and closed. (For that matter, neighbors should sue them in small claims court. They can contact me and I’ll help them put the case together for free—a service that the city attorney’s office should offer, since they don’t seem to enforce their own rules.)

The 150-foot, straight-line proximity prohibition to residences is a red herring. Proximity is not the issue; it’s behavior. Good-neighbor collectives, which improve rather than detract from their communities, are not an issue. That’s the whole purpose of commercial corridors and zones like commercial neighborhood (CN) and commercial pedestrian (CP). These areas make it possible for people to walk around their neighborhoods and get the goods and services they need and want—without cars and parking and pollution and paying for gas.

Industrial zones are working well, as are commercial zones. Keep collectives out of strictly residential zones and follow federal guidelines. They must be 1,000 feet away from schools and playgrounds.

3) Get rid of the buffer between collectives. As the mayor pointed out, and staff was forced to agree, this requirement knocks out most of the city’s viable parcels. The mayor noted that most complaints about collectives involve activity in the parking lots. He sensibly suggests that the best approach is to have clear regulations for enforcement and reasonable behavior standards in those parking lots. A buffer zone is irrational and eliminates most locations for no good reason.

4) Delete the cultivation regulations for now. For all the reasons several councilmembers noted Tuesday, San Jose should not require all cannabis to be grown in the city under high-intensity, artificial lights that consume electricity on an industrial scale. The existing state law—laissez faire though it maybe—allows patients to cultivate cannabis outdoors in Northern California sunlight, which provides excellent, low-cost organic medicine.

5) Allow salaries and wages. Amend the definition of “overhead expenses” to include salaries and wages—and all other reasonable start-up and operating expenses.

6) Allow cash transactions. Collectives often don’t have banking and credit card/ATM services, because banks feel threatened by the Feds.

7) Give landlords a break. Do not require disclosure of the use on leases so landlords are not intimidated.

8) Don’t require wasteful and pointless audits. Do not require onerous and expensive CPA audits on an annual basis. The city can inspect books and records to satisfy their monitoring needs.

9) Actually enforce tax compliance. Staff reports that of the city's 78 collectives, 13 are not tax compliant. The city manager and city attorney have done nothing about this in over two years. Shame on them. They should close those collectives first.

The Sensible San Jose (SSJ) initiative accomplishes every goal and satisfies all concerns. The council should pass it. People willing to learn more or sign our petition can come by HQ at 15 N. 2nd Street (at Santa Clara Avenue) any day between 10am and 10pm. Or check out our website for a list of collectives that have petitions on site.

James Anthony is the chair of Sensible San Jose, a group of concerned San Jose residents and medical cannabis activists striking a balance between public concerns and medical needs. More info and a petition to regulate medical cannabis in San Jose can be found on www. SensibleSanJose.org.

Although we agree on every point, you are missing one major problem. According to the City Attorney, none of the 4 initiatives that have been filed meet the federal guidelines. This means the council will not adopt the Sensible San Jose language, and that if it were to pass, it may face legal challenges.

Regarding your comparison chart, the line “For Commission To Address If They So Choose” is a little deceptive. The language filed by the Silicon Valley Cannabis Coalition will address every issue related to Medical Marijuana in San Jose. The SVCC will be filing yet another initiative to correct the issue that caused staff to claim it did not meet the federal guidelines. The stance of SVCC is that a regulatory body such as a commission is the best solution for San Jose. A task force or commission is something the people of San Jose have been asking for all the way back in 2004 http://bit.ly/metro-04

Also please stop referring to the work of the Silicon Valley Cannabis Coalition as the “Hodges” initiative. We have worked extremely hard to provide an open & inclusive process, and to call it the “Hodges” initiative undermines the hard work of the other people involved.

If you would like to contribute to uniting the community, please make suggestions on how we improve the language for the next filing. The current language is hosted in this Google doc: https://bit.ly/svcc-language and is setup for anyone to add comments.

I support the SVCC initiative over this one, but you’re spreading misinformation. There is no legal basis to challenge an ordinance because it does not conform with federal statutes, let alone guidelines that have no force of law.

I’m pretty sure that was the basis for the Pack v. Long Beach decision. The Long Beach regulations violated federal law and were struck down. I’m not sure if the current federal stance would have changed the outcome of that law suit, but if Long Beach could say they met all federal requirements, it might have..

The holding in Pack was that an affirmative city permit system actively conflicts with the Controlled Substances act and is this preempted under the Supremacy Clause. The Sensible San Jose initiative, like the San Jose City Attorney’s ordinance, does not contain an affirmative permit, but merely a registration system and an affirmative defense (similar to Prop 215 but giving immunity to the alleged municipal code violation by all collectives). The City Attorney specifically crafted this system to be Pack compliant.

Staff is using the 8/13 Cole memo as an excuse to craft an unworkable ordinance–on the theory that if the ordinance isn’t a tightly wound up over-regulated rigid regime, Melinda Haag will…what? Arrest the City Council? Close every collective in SJ? It’s another red herring, another excuse. There is no legal impediment that hasn’t already been addressed–by the city attorney, by me, and by Jim Roberts.

Ok, if I could edit the above, I’d delete the last line. This stuff is confusing, especially with staff and City Attorney obfuscating and manipulating the Council and you too Dave. Don’t believe everything a lawyer tells you, especially the city attorney. (I know, I know, lying Cretans…)

The “federal guidelines” are a distraction. What do they amount to? Common sense–what we are already doing and what any ordinance would cover: no illegal sales to minors, no cartels, no interstate smuggling, no cover for other drugs, no firearms, no driving while incapacitated, no growing on public lands, and no smoking on federal property. That’s it.

We already include all that–the city and all the initiatives. As for growing, we’re double-bound: staff says they must see it all and it all has to be in San Jose which means indoors, and of course, if we do that, it’s not only an insane environmental catastrophe, but that’s what would actually trigger the feds to come down on San Jose–not protect them. It’s a lose-lose. We can do better than that. And eventually, we’ll fix it at the state level.

I’m not holding my breath on the City Council adopting the Sensible San Jose initiative ordinance. But I’m not ruling it out either. After last Tuesday, they have awoken. Anything is possible. I’m open to being surprised by them–and willing to work with them, while we continue to collect signatures, advance, and prepare to file.

I do thank you Dave, for all you’ve done in San Jose over the years. Though we may not always see eye-to-eye, none of us would be here without you.

Thanks, Dave. The comparison chart was put together by city staff and distributed to council at Tuesday’s meeting. Any concerns you have about the language shoud be addressed to them. I didn’t write any of it.

All the best on your efforts. As I’ve said all along, I support all the initiatives. Sign them all and let San Jose voters decide since it seems the council won’t figure it out. Though I must say, they surprised me on Tuesday, so maybe there’s hope yet.

As long as cannabis and hemp are controlled substances any visible permit process condemns applicant to self incrimination at the Fed level. Conspiracy, RICO tools are available to prosecute lawful minded citizens. Efforts and pressure needs to be made on Obama, Feinstein, Boxer etc to have cannabis and hemp relegalized as a matter of national security e.g. End oil, produce biofuel, food, medicine. Hemp can save the world. It’s really a win-win for climate, patients, soil conservation, save trees. You know about the 50,000 uses. Transform US to a hemp economy.

I’m glad I signed both . Working with James over 420 was great . And known Dave since 2010 and yes SJ MMJ would not be where it is not for Dave .
You two are not far apart . Work out the fine points and this would have been locked in .
I’m in a city that will not even let head shops in it needless to say mmj collective .